Deciphering the Code:

The Draft Penal Code (Amendment) Bill

The amendments to the Penal Code which have been proposed by the Ministry of Home Affairs, and which will soon be debated in Parliament, are pursuant to a comprehensive review of this legislation. This article highlights that there is much room for debate on the merits of the proposed amendments and whether other desirable amendments to the Code have been omitted from the Amendment Bill. The views expressed in this article are the personal views of the author.
About half a year has passed since the Ministry of Home Affairs ('MHA') released the draft Penal Code (Amendment) Bill and invited the public to provide feedback on the proposed amendments. After the close of the one month window for public feedback, it was reported in The Straits Times that the 252 responses received by the MHA touched mainly on the changes to the provisions relating to gay sex, sex offences (particularly marital rape) and on sentencing issues.

This review of the Penal Code is intended to be comprehensive and to address all the provisions of the Code which warrant amendments. Hence the MHA Consultation Paper states that 'every effort has been made to ensure that the review has been as thorough as possible. This review covers all the sections in the Penal Code to assess whether they should be amended'. No lines have been drawn and nothing is out of bounds.

With such a broad canvas, it has been disappointing to see that public debate has been somewhat narrow and unduly constrained to the issues raised in the draft Bill. Indeed, it would be fair to say that most, if not all, the editorials and discussions in the newspapers focused on just two issues - marital rape and the apparently broadly misperceived 'extension'1 of unlawful assembly to include a group whose common object is to commit 'any offence'.

The MHA has stated that any comments received before the Amendment Bill is tabled in Parliament will still be considered. One therefore remains hopeful that the next few months will see broader, deeper and more balanced discussions of desirable amendments to the Penal Code, not limited to what has been set out in the draft Bill.

One of the glaring aspects of the proposed amendments is that they leave defence lawyers with precious little to cheer about. Is this because the Penal Code provisions relating to defences are quite adequate as they stand now?

A perusal of the academic literature reveals that there is no dearth of articles suggesting amendments to provisions in Chapter IV of the Code (which sets out the General Exceptions) and to other provisions important from the perspective of the defence. Indeed, in his book Criminal Defences in Malaysia and Singapore (2005, Malayan Law Journal), Professor Stanley Yeo has examined the various criminal defences in depth and has provided various proposals for reform. None of these have found their way into the draft Amendment Bill.

Part I of this article sets out in brief, some possible amendments to the statutory defences in the Penal Code. Cross-references are made to other materials which address particular points in greater depth. It is hoped that this will serve as a starting point for a debate from the defence perspective of aspects of the Code which should be reviewed.

Part II of this article considers the amendments proposed in the draft Bill2 and raises various questions which need elucidation.

To keep this article to a manageable length, it is assumed that readers will concurrently have reference to the draft Bill so that the proposed amendments do not have to be explained or set out.

Part I - Defences in the Penal Code
Set out below is a discussion of some proposed amendments to the defences provided in the Penal Code.

Intoxication
Section 85 of the Code deals with the defence of intoxication. Leaving aside s 85(2)(b) situations involving insanity caused by intoxication, s 85(2)(a) limits the defence to intoxication caused without the accused person's consent 'by the malicious or negligent act of ?another person'.

Professor Stanley Yeo has pointed out in his article A Penal Code Reviser's Checklist [2003] SingLRev 115, that prior to amendments in 1935, s 85 only required that the intoxicant was administered without the accused person's knowledge or against his will. Professor Yeo goes on to point out that:

[T]he new basis of criminal responsibility of the revised s 85(2)(a) may be seriously questioned. Under this revision, a person who became intoxicated after consuming an intoxicant which he genuinely believed to be innocuous will be guilty of the offence charged unless he could show that his mistake was due to the malice or negligence of someone else.

Accordingly, the ongoing review of the Penal Code provides a good opportunity to reconsider s 82(2)(a) to determine whether to do away with the requirement that the intoxication should be caused 'by the malicious or negligent act of another person'.

As for s 85(2)(b), it may also be considered whether this provision serves any purpose apart from confusion and consequently whether it should be simply deleted.

Duress
The defence of duress under s 94 of the Code has also received the scrutiny of Professor Yeo. In his article Considerations of Time and Space in Duress [2004] 16 SAcLJ 354, Professor Yeo concludes that s 94 would be improved by reform. The main change proposed by Professor Yeo is that the word 'instant' should be removed. He notes that even if there is no threat of 'instant death', subject to certain caveats, a threat to kill the subject at a future time should equally allow that subject to rely on the defence of duress.
In comparing the law in other jurisdictions, Professor Yeo notes that in Australia, to establish duress, 'the harm threatened can be grievous bodily harm and can be directed at a third party'. This is substantially broader than s 94, which only applies where the harm threatened is death of the accused person himself. Whether duress under s 94 should be expanded to bring it in line with the Australian position is worth considering.

Diminished responsibility and culpable homicide
Exception 7 to s 300 of the Penal Code provides for the diminished responsibility defence to murder. It states that culpable homicide is not murder 'if the offender was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility … '.

In another of his articles, Reformulating Diminished Responsibility: Learning, from the New South Wales Experience (1999) 20 Sing LR 159, Professor Yeo has examined this provision and proposed certain amendments. Professor Yeo points out that the provision in the New South Wales Crimes Act which is in pari material with Exception 7 was amended in 1998. He goes on to explain why similar amendments to Exception 7 are warranted.

In the light of a recent Court of Appeal decision touching on Exception 7, a revision of its wording may be particularly timely. Just last year, in the case of G Krishnasamy Naidu v Public Prosecutor [2006] 4 SLR 874 the Court of Appeal found that the High Court Judge had adopted the wrong approach in determining whether Exception 7 was applicable. Accordingly, the Court of Appeal set aside the conviction for murder and the accused person was spared the death penalty.

In rejecting the strict application of a three-stage test, the Court of Appeal said 'When a person has already been determined to be suffering from an abnormality of mind in present circumstances, how does one determine what sort of conduct, and at which point that person's action may be said to have been impaired, and when it has not?'.

This highlights the ambiguity of the requirement that the abnormality of mind should have 'substantially impaired [the accused person's] mental responsibility'. Professor Yeo's proposed rewording might be more straightforward. It is more specific and highlights the connection of the 'abnormality of mind' to the 'impairment' by requiring that the accused person prove his 'capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired'.

As noted by Professor Yeo, there also seems no rational basis to limit the availability of the defence of diminished responsibility to abnormalities of mind caused by 'a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury' - a requirement affirmed by the Court of Appeal decision in Tengku Jonaris Badlishah v Public Prosecutor [1999] 2 SLR 260. Whether that limitation should be done away with is another question which deserves attention.

In addressing the issue of whether the cause of the abnormality of mind is relevant, there would also arise the connected issue of whether or not self-induced abnormality of mind (by intoxication) can be a basis for a defence of diminished responsibility. Professor Yeo has suggested in his article Intoxication and Mental Disorder Defences [2004] 16 SAcLJ 488 that unless there is an underlying condition of a non-transient nature, self-induced intoxication cannot itself form a basis for a defence of diminished responsibility - a view which the present author does not share, particularly considering the penalty for murder in Singapore. It seems harsh to sentence a man to death for a crime even after the court has found that he did suffer from a relevant abnormality of mind due to intoxication; too harsh, even if the accused person's intoxication was self-induced.

Part II - The Draft Amendment Bill
The second part of this article sets out some comments on the proposed amendments in the draft Bill.

Sexual offences3
It is not an exaggeration to say that the proposals in the Amendment Bill would change the section of the Penal Code on sexual offences almost beyond recognition. Many questions arise from the revamped provisions.

To start with, the proposed ss 375 (rape), 376 (sexual assault by penetration) and 376A (sexual penetration of minor under 16) are each worded rather similarly. As a matter of form, it would have been ideal if these three lengthy sections could have been combined into one section instead of repeating similar wording three times as presently drafted. Even deciphering the interplay between these three sections to deduce the extent of marital immunity is a challenge!

But quite apart from matters of form, the maze of proposed provisions on sexual offences give rise to many more substantial questions.

The issue of whether marital immunity should be altogether done away with has been examined at some length in newspaper commentaries. The debate is likely to carry over into Parliament. The draft Bill retains marital immunity save for exceptional situations such as where the husband and wife are already living separately. Interestingly though, marital immunity appears to be restricted to vaginal intercourse and does not extend to anal intercourse or other forms of penetration. It is questionable whether this is a rational distinction.

The proposed amendments make consensual oral sex with a girl aged between 14 and 16, a crime attracting the same penalty as vaginal or anal sex - up to 10 years' imprisonment plus fine. One could question whether consensual oral sex with a minor should be as serious as vaginal sex which can lead to unwanted pregnancy and the spread of disease.

Another interesting aspect of the proposed sexual offences is the apparent gender bias in favour of females. So the proposed s 376A seems to have deliberately avoided criminalising a woman's act of causing a male under 16 years old to penetrate her. Along similar lines are the proposed ss 376B(4) and 376E(5). The effect of s 376B(4) is that although a man who pays a girl under 18 years old for sexual services would commit an offence, a woman who pays a boy under 18 years old for sexual services would not. Similarly, by virtue of s 376E(5), although a man may be guilty of an offence of inducing a person with a mental disability into consenting to a sexual touch, a woman is immune from any such offence.

One wonders whether this apparent gender bias is in line with modern circumstances where there are plenty of women in positions of authority who are well placed to take advantage of males should they be so inclined.

The proposed s 376E introduces the offence of procurement of sexual activity with persons of mental disability. It criminalises sexual touching of a mentally disabled person if the consent of the victim was obtained by means of an inducement, threat or deception. This gives rise to several questions.

To start with, the proposed s 376E seems to introduce an ambiguity. The offence arises if the mentally disabled person's consent is obtained 'by means of an inducement offered or given, a threat made or a deception practiced'. The question is this - applying s 90 of the Code, doesn't - 'a threat made or a deception practiced' void the consent. If the consent is void then s 376E should not apply at all as the offence becomes a normal sexual offence (eg rape or outrage of modesty, depending on what the actus reus was). So when would the 'threat' or 'deception' limbs apply?

Furthermore, is offering an 'inducement' too broad a basis for liability? Much that all of us do from day to day, we do because of some inducement offered. Is it any more wrong that an inducement should be offered to a mentally disabled person for a sexual touch? Perhaps this begs a prior question - does s 376E apply only to certain types of inducement? Would the offence be better defined by focusing on the act of the accused person, perhaps by requiring that he 'takes advantage' of the victim's mental disability?

Another aspect of the section which seems to throw the net out too far is the broad mens rea element. It provides that a person may commit the offence if he 'knows or could reasonably be expected to know' that the victim had a mental disability. Is it not enough to limit the applicability of this section to those who actually know they are dealing with a mentally disabled person?

Moving on, under the proposed amendments, consensual adult gay sex continues to be technically illegal even though it has been openly stated that such 'crimes' will not be actively prosecuted. Whether the time has come to decriminalise gay sex is an issue that should see some debate.

Sexual offences - evidential presumptions
The draft Bill proposes the introduction of a panoply of presumptions to be specifically applicable to sexual offences. Section 377F sets out six situations in which an evidential presumption of no-consent arises. Section 377G tips the balance even more heavily in favour of the prosecution - it sets out two situations in which a person is conclusively deemed not to have consented.

Presumptions on the critical issue of consent may very well be decisive of the outcome of a trial involving a sexual offence. The proposed ss 377F and 377G therefore deserve very close scrutiny.

It is difficult to see why evidential presumptions are necessary for the situations set out in s 377F. For example, it is quite certain that if violence was used during the sexual act and if the victim came to court and said she did not consent, then the court would be likely to believe the victim. So why is it necessary to have a presumption in place? There will be difficult cases where things are less clear but it is precisely those cases where the outcome should be based on the facts, with the accused person having the benefit of the doubt rather than having presumptions weighing matters against him.

Even more questionable is the need to introduce the conclusive presumptions in the proposed s 377G. It provides that the complainant shall be deemed not to have consented if she was deceived 'as to the nature of the relevant act' or if the accused person had induced her to consent 'by impersonating a person known personally to the complainant'.

The first question to ask is whether or not s 377G serves any purpose. In the two situations set out there, wouldn't any 'consent' be void as having been given under a misconception of fact (see ?s 90(a) of the Code and PP v Kwan Kwong Weng (1997) 1 SLR 697)?
Although s 377G seems somewhat superfluous, it may have the capacity to do more harm than simply cluttering up the Code with excess verbiage. The potential harm is that it could shift the focus of enquiry from the root issue of whether or not there was consent to the subsidiary issue which triggers the conclusive presumption (eg whether or not there was deception as to the nature of the act). The earlier query is at least conceptually certain. The latter is not.

In his article, Does Yes mean Yes? The Criminal Law and Mistaken Consent to Sexual Activity [2002] SingLRev 182, Jonathan Herring discusses both the situations which are made the subject of conclusive presumptions in s 377G. He brings out well the scope for ambiguity in the criteria specified.

He gives this example of what he considers to be 'a different act to that consented by the victim' - 'where the victim is consenting to sexual activity as an act having greater significance or meaning beyond the physical act, but the defendant engages in sexual intercourse without that ulterior expressive function in mind'. How many people would consider that rape? Some explanation of the intention in introducing the s 377G presumptions is therefore warranted, lest they be misinterpreted in future.

The ambiguity in the phraseology of ?s 377G leads to the question of whether it may actually lead to confusion. Difficult cases there will surely be. But isn't it better to focus on the conceptually clear issue that matters (whether there was consent or not) rather than focus on unclear secondary issues which if proven will activate a conclusive presumption?

More fundamentally, one wonders ?whether it is wise to introduce presumptions relating to consent exclusively for sexual offences. After all, consent is not a concept peculiar to sexual offences, and there is already an existing provision (ie s 90) that deals with consent in the Code. Creating a dichotomous treatment of consent within the Penal Code is not conceptually appealing.
In any event, there appears to be an error in the proposed s 377E. It extends the presumptions to the s 376E offence of procurement of sexual activity with person with mental disability. But the second element of the s 376E offence, stated at paragraph (1)(b), is that '[the victim] consents to the touching'. How then is a presumption of non-consent relevant? In fact, non-consent is quite the opposite of this second element, leading to this logical absurdity - it could be argued no offence under s 376E could ever be committed in the situations specified in the presumptions. Even if the presumptions are to be retained, s 376E should be removed from s 377E.

Outrage of modesty - expansion of offence
Section 354 of the Penal Code sets out the offence of outraging modesty. The draft Bill proposes to extend the provision to punish 'outrage of modesty' involving persons under 14 years of age, whether the minor consents or not.

The question that arises is how to separate outrage of modesty from lack of consent. Isn't the lack of consent often the very thing that makes the act an outrage of modesty? Hence a stroke of the arm is just as capable of amounting to an outrage of modesty as an overtly sexual act - whether either is an outrage of modesty turns on whether there was consent or not.

Once consent is made a non-issue as is proposed, how is one to know what amounts to outrage of modesty and what does not? If the offence is to be so devoid of any consent issue then would it not be better to be explicit about the exact act that is being criminalised?

More practically, one wonders - what of the secondary school students who engage in petting? Would they now be committing an offence?

New offence - bribery of witness
The draft Bill proposes the introduction of a new s 204B, sub-s (1)(a) of which makes it an offence to '[give] … any gratification to … any person … upon any agreement or understanding that any person who is aware of any offence will abstain from reporting that offence to the police … '.

Consider this hypothetical situation. A steals $100 from B. B finds out. B tells A that B will report A to the police unless A returns the money. Should both A and B be guilty of crimes if A returns the money? Would it not be better to leave open the avenue for such self-help measures where simple crimes are involved?

If a victim is prepared to settle for payment of some compensation in lieu of lodging a police report relating to a minor offence, is the public interest served by preventing such an amicable resolution? More serious crimes will remain on a different footing by virtue of s 22 of the Criminal Procedure Code which imposes a duty to report the serious crimes specified.

It is therefore questionable whether ?s 204B(1)(a) is a desirable innovation.

In any event, another question that arises is whether the proposed s 204B(1)(a) is meant to apply only to Penal Code offences. This would seem to be the somewhat incongruent outcome of the proposed amendments, since no amendment has been proposed to ?s 40 of the Code. It seems strange that s 204B(1)(a) should apply only to Penal Code offences, whereas s 204B(1)(b) to (d) are not so restricted.

Conspiracy
Section 120A of the Code provides that an agreement to do an illegal act is a criminal conspiracy. It should be appreciated that as defined in the Code, an 'illegal act' is not necessarily an 'offence'. The latter is a subset of the earlier.

Under the existing s 120B, a criminal conspiracy to commit an 'illegal act' which is not an 'offence' is punishable with up to six months' imprisonment. However, the proposed amended s 120B does not seem to provide any punishment whatsoever for a conspiracy to commit an 'illegal act' per se and instead deals only with 'a criminal conspiracy to commit an offence'.

The question that arises is whether it is intended to effectively decriminalise a conspiracy to commit an illegal act - this may be a sensible move considering that one does not find reported cases involving prosecution for such acts. But if this is the intended effect of the proposed amendment to s 120B then it would seem appropriate to also amend s 120A so that the otiose references to 'illegal act' there are deleted. The concept of 'conspiracy to commit an illegal act' would then be eliminated and substituted by the concept of 'conspiracy to commit an offence'.

Grievous hurt - expansion of definition
Section 320 is the provision which explains when hurt is so severe as to be characterised as 'grievous hurt'. Two additions have been proposed to the list set out at s 320.

The draft Bill proposes the insertion of a para (aa) to s 320 to add 'death' as a type of hurt which is grievous. One would have thought this quite unnecessary given that 'any hurt which endangers life' is already presently characterised as grievous under para (h).

The other proposal under the draft Bill is even more puzzling - insertion of a para (ab) to add 'penetration of the vagina or anus of a person without that person's consent, which causes severe bodily pain'.

One wonders whether para (ab) is meant to extend to situations where penetration without consent itself is not a crime. In a normal spousal relationship, a husband who penetrates his wife's vagina without her consent does not commit an offence. Would it become an offence of grievous hurt just because he 'causes severe bodily pain'? That would be a peculiar type of crime indeed, making for a quite unexpected exception to marital immunity.

Unfortunately the Consultation Paper sheds no light on the intended purpose of adding the proposed para (ab). In the absence of any cogent reasons to the contrary, both proposed amendments to s 320 seem ill-advised.

Sentencing
Section 75 of the Penal Code is probably not very familiar to most practitioners.And for good reason too. There is no reported judgment where s 75 was applied. But it is a potent provision which provides for enhanced punishment of inter alia up to life imprisonment for property offences committed by accused persons who have at least one similar prior conviction. For example, a person with a prior conviction for theft could technically find himself facing life imprisonment for a subsequent simple theft offence if s 75 was invoked.
One would have thought that the fact that s 75 is practically never used is a testimony to its draconian character and provides good cause to question whether it should remain in the statute books. However, instead of deleting s 75, the draft Bill proposes to tweak it. Delete or amend is a question that should be asked about s 75.

Another sentencing issue that should be thoroughly debated is whether there is a need for the almost across the board increase in punishments as proposed in the Amendment Bill. It is difficult to understand why such increases are necessary when the courts have not been coming close to hitting the ceiling of existing punishment provisions.

One also wonders whether it is anachronous to maintain mandatory minimum sentences when the judiciary has grown in strength and consistency over the past two decades.

Conclusion
The Penal Code is the cornerstone statute of the body of legislation which sets out the criminal laws of Singapore. It sits on the desk of every practitioner, well worn through regular use. This review of the Code is an excellent opportunity to address the many comments that have been made on how it may be improved, just a sampling of which have been set out above. Even if we cannot all agree on every amendment, at least let us share the sort of understanding that only an active, sincere and thorough debate of alternative views can bring.?

Thomas Koshy*
Republic Polytechnic
E-mail: thomas_koshy@rp.sg

*This article was written by the author before having sight of the report submitted by the Law Society to the Ministry of Home Affairs in response to the proposed amendments to the Penal Code and represents the personal views of the author alone. ??The Executive Summary of the report of the Council of the Law Society on the amendments to the Penal Code is published on page 11 of this issue. The full Council's Report is available to members on the Members Homepage of the Society's website www.lawsociety.org.sg

Notes

1 It does not seem to have been appreciated that the proposed amendment of s 141 is consistent with the existing law as enunciated in the Court of Appeal decision in Public Prosecutor v Tan Meng Khin and Others [1995] 2 SLR 505.
2 A number of the issues in Part II have been highlighted to the MHA in my December 2006 submission in response to the public consultation exercise.
3 Most of these issues were also brought up in the article titled 'How Useful, This Feedback Process?' written by me and published in the TODAY newspaper on 21 November 2006.